Final Non-Precedential Decision Adopted: February 18, 2000

By: Howard Schwartz, DPA Chief Counsel

This matter was heard before Mary C. Bowman (Campisi), Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 11:30 a.m. on November 2, 1999, and at 10:30 a.m. on January 11, 2000, at Riverside, California.

Appellant was present and was represented by George Maricic, Attorney.

Gregory L. Nicholas, Staff Counsel represented the Department of Corrections (CDC), respondent.

Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

On April 21, 1999, respondent served appellant with a Notice of Automatic Resignation from his position as Correctional Sergeant effective May 11, 1999. On May 11, 1999, the Warden of CVSP held a Coleman1 meeting with appellant, at which time appellant was provided an opportunity to explain the reason for his absence and his failure to obtain leave. The Warden upheld the automatic resignation; and appellant was automatically resigned close of business March 17, 1999, for being absent from March 17 through April 21, 1999, and not providing medical verification and a satisfactory reason for the absence. On May 26, 1999, appellant mailed a request (appeal) for reinstatement to DPA.

A DPA hearing was set for July 20, 1999, but was continued by agreement of parties. It was reset for September 15, 1999, but was again continued by agreement of parties. It was reset for November 2, 1999. At the time and place set for hearing, the counsel requested that the issue of timeliness be bifurcated from a hearing on the merits. Accordingly, a jurisdictional hearing on the timeliness of the appeal was held on that date.

Based on the evidence presented, the ALJ determined that appellant filed a late appeal. She also determined that appellant demonstrated good cause for the late filing, since he misunderstood the date, from which his appeal ran and actively pursued his appeal rights. Further the delay in mailing his appeal was less than 30 days after the time for appeal ran.

Accordingly, the appeal complies with procedural requirements Government Code section 19996.2, as implemented by DPA Rule 599.904.

A hearing on the merits was held on January 11, 2000. The record originally remained open until close of business January 31, 2000, for appellant’s counsel to submit the testimony of appellant’s physician and for counsel to file written closing argument. The record was reopened after the late submission of the stipulation regarding testimony of appellant’s physician and respondent’s counsel was given until close of business February 16, 2000, to file a supplemental closing argument.

Appellant claimed that he had a medical reason for being absent from work, that he provided adequate notice to respondent of his absences by calling his post each day and that he is currently ready, able and willing to return to work.

On March 17, 1999, appellant worked First Watch at CVSP. He was assigned the post of Outside Perimeter Sergeant. At approximately 3:00 a.m., appellant saw a flashing red light at the wastewater treatment plant and drove over to the area to investigate.

As he approached the plant, appellant noticed the odor of bleach (chlorine) and contacted the Watch Commander. A hazardous material team was assembled under the direction of the Associate Hazardous Materials Specialist. The team inspected the wastewater treatment plant for signs of a chlorine leak. The team determined there was no evidence of a chlorine leak and no evidence of a weight loss of gas in the cylinders which store the chlorine. The team discovered a small pool of chlorine-laden residual water, which had collected during the night near a chlorine gas sensor. The team and respondent department concluded that the residual concentration of chlorine in the water had tripped the sensor. The odor detected was similar to that occurring around a swimming pool.

After the perimeter around the wastewater treatment plant was secured, appellant reported to the institutional infirmary. A Medical Technical Assistant (MTA) and a Registered Nurse (RN) examined appellant. The MTA completed a Medical Report of Injury or Unusual Occurrence (report) and a Central Health Referral Form (referral). According to the report, appellant stated he was “exposed to chlorine from the wastewater tr[eatment] plant” and he had a “[t]aste [of] chlorine on tongue, throat burning, [and] tightness of chest.” The report did not indicate appellant suffered any injury or trauma to his eyes.

The referral directed appellant to Palo Verde Hospital or his personal physician for medical attention “ASAP.” Appellant declined further treatment that evening and returned to complete his shift.

The following day, appellant called in sick claiming his eyes had been injured by exposure to chlorine gas at the wastewater treatment plant the night before. He did not return to work after that date.

Appellant testified that he was examined on March 18, 1999, at the Urgent Care Desert Medical Group and that he saw a doctor who gave him eye drops. (He did not obtain an off work order or any substantiation of the visit.) He also testified that he was under the care of his personal physician and an ophthalmologist between March 22 and the date of hearing.

Evidence from the physician, taken by way of stipulation, included the following.

On March 11, 1999, appellant’s physician treated appellant for blurred vision associated with a migraine headache.

On March 22, 1999, appellant’s physician treated appellant for “chronic, persistent chemical conjunctivitis. Appellant’s vision was 20/80 in both eyes. The physician concluded he was precluded from working as a Correctional Sergeant.

The physician did not identify an infectious or allergic cause for the conjunctivitis. Based upon information provided by appellant, he concluded the conjunctivitis was caused by exposure to chlorine gas at the work site on March 17, 1999.

On June 3, 1999, the physician reexamined appellant. His clinical impression was that appellant had “chronic persistent chemical conjunctivitis of the eyes with subacute myopia due to damage to the lenses as a result of exposure to chemical gas.” He also concluded that the injury affected appellant’s visual acuity and caused persistent discomfort.

The physician treated appellant with antibiotics, anti-inflammatory eye drops, steroid eye drops and corrective lenses. His vision was 20/30 and 20/40, with correction.

The physician released appellant to return to work without restrictions effective July 1, 1999.

Appellant called the Watch Office on a number of occasions between March 18 and April 21, 1999, to report he was not coming to work due to “chemical exposure at work.” The following dates were duly recorded on the Watch Sergeant’s report as those dates upon which appellant called to report he would not work: March 19, March 24, March 29, March 31, April 5 and April 8, 1999.

Appellant did not contact the Health and Safety Officer (RTW Coordinator) regarding his extended time off work and did not request approval for his leave. On March 31, 1999, a Watch Sergeant reported appellant’s lack of attendance to the RTW Coordinator, Carol Naranjo. Thereafter, appellant was removed from the duty roster for his post and the matter handled through Naranjo’s office.

On March 31, 1999, at approximately 3:00 p.m., RTW Coordinator attempted to make contact with appellant by calling his residence. No one answered the phone. The RTW Coordinator left a message on the answering machine informing appellant that due to the length of time he had been off work, he needed to submit an off work order as soon as possible. Appellant did not return the call and did not submit a work order.

On April 5, 1999, the RTW Coordinator called again. She spoke directly with appellant and told him he needed to bring or send her his off work order from a doctor. Appellant told her he would get it to her. He did not.

On April 8, 1999, the RTW Coordinator called appellant a third time and again spoke directly with him. She still told him she needed the off work order immediately. He responded something to the effect of, “okay.” He still did not provide the off work order.

The RTW Coordinator called appellant on April 20, 1999 at 10:10 a.m. She left one more message on his answering machine. He did not respond.

Appellant testified that he was of the opinion that calling the Watch Sergeant was sufficient notice to respondent that he would be off work because of an injury. He also testified that he was following standard procedures for employees off work due to work-related illness. He was of the opinion that the procedures did not require an absent employee to provide medical substantiation until he/she returns to work.

The RTW Coordinator preserved her notes of the calls and contents of the calls to appellant’s residence on March 31, April 5, April 8 and April 20, 1999. However, appellant testified he did not receive the messages she left. He did not explain why he disregarded her direct requests of April 5 and 8 to provide medical substantiation through an off work order and he never supplied one, even after he served with a notice of automatic resignation and provided a Coleman meeting with the Warden. Appellant considered himself on “extended sick leave (ESL)” because respondent removed him from the active duty roster after March 31, 1999.

The RTW Coordinator testified regarding the procedures for handling extended absence from work. When an employee has been absent for over three workdays, CDC managers and supervisors turn the matter over to a RTW Coordinator to handle. The RTW Coordinator obtains an off work order from the absent employee or his/her doctor, which should include a proposed return to work date. The RTW Coordinator also handles the employee’s medical clearance to return or transition the employee back to work.

Appellant has filed approximately six workers’ compensation claims. One of the prior claims was for a similar alleged exposure. Since he began working at CVSP, he has been off work for extended periods of time on at least two other occasions. (He was off work in July 1991 and again in June 1994.) The RTW Coordinator testified that on the prior occasion appellant demonstrated knowledge of and complied with the department’s sick leave procedures, including providing the required documentation.

The Warden’s Office at CVSP issued two memorandums to employees (including appellant) which addressed sick leave procedures. On September 18, 1997, a memorandum issued advising employees who were off work for more than three days following a work-related injury that they must be medically cleared through the Health and Safety Office and the Chief Medical Officer. On January 21, 1998, another memorandum issued advising injured employees that they were required to obtain medical clearance through the RTW Coordinator unless the period off work was less than a three-consecutive workday period.

Appellant testified he did not receive sufficient training to understand the procedures regarding substantiation of sick leave usage. He also testified that two other witnesses (a Second-Watch Sergeant and a retired Third-Watch Sergeant) would substantiate his position, which was that the standard procedure for an absent employee was to bring in the return to work verification when he/she was ready to return to work, not before.

The Second-Watch Sergeant and the retired Third-Watch Sergeant testified that when an employee is out for more than a few days, his/her return to work must be cleared through the Health and Safety Officer or Captain. As they understood it, the Watch Sergeant was not responsible for approving or denying sick leave requests, but rather to record calls from employees who would not be at work due to illness and fill behind the employees at their respective posts. They understood that when an employee is absent for more than a few days, the Health and Safety Officer coordinates the return to work. In this particular case, the retired Third-Watch Sergeant reported appellant’s extended absence to RTW Coordinator on or about March 31, 1999; and thereafter, his post listed him as on extended leave. Neither she nor the Second-Watch Sergeant approved leave for appellant.

Respondent’s self-certification policy for absences due to illness of three or fewer days is consistent with longstanding policy for State employees in California. Respondent’s general policy requiring medical substantiation for absences of more than three days is also consistent with longstanding State policy. Consequently, it is found that appellant had sufficient notice and knowledge to comply with the reasonable request for medical substantiation after the third day of his absence.

Appellant’s physician released appellant to return to work without restriction effective July 1, 1999. Proof of that release was presented to the ALJ and made part of the record on February 2, 2000. Appellant testified he is ready, willing and able to return to work.

 

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Government Code section 19996.2 provides an automatically separated employee with the right to file a request for reinstatement with the DPA. Section 19996.2 also provides:

“Reinstatement may be granted only if the employee makes a satisfactory explanation to the department [DPA] as to the cause of his or her absence and his or her failure to obtain leave therefor, and the department finds that he or she is ready, able, and willing to resume the Discharge of the duties of his or her position or, if not, that he or she has obtained the consent of his or her appointing power to a leave of absence to commence upon reinstatement.”

Pursuant to Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, the Court held that an employee terminated under the automatic resignation provision of section 19996.2, has a right to a hearing to examine whether he/she had a valid excuse for being absent, whether he/she had a valid reason for not obtaining leave and whether he/she is ready, able, and willing to return to work. DPA is not charged with examining whether the appointing power acted properly with regards to the actual termination. Further, appellant has the burden of proof in these matters and must prove by a preponderance of the evidence the he/she had a valid excuse for his/her absence and failure to obtain leave and that he/she is currently able to return to work.

Appellant proved by the preponderance of the evidence that he was unable to work from March 22 through June 30, 1999, due to chronic, persistent, chemical conjunctivitis with sub-acute myopia due to damage to the lenses.2 Accordingly, it is concluded appellant had a reasonable explanation for being absent from work on March 22 through April 21, 1999.

Appellant did not prove by the preponderance of the evidence that he had a satisfactory reason for not obtaining approved leave. He never requested leave and provided no medical substantiation to support his need to be off work for more than three days due to illness or injury. In addition, he made no effort to call or respond to the RTW Officer’s requests for an off work order from his physician. In fact, appellant did not provide any medical substantiation as to the cause for his absence until after the hearing on his request for reinstatement had concluded. Appellant’s claim that he did not understand procedures is spurious in light of his continuing refusal to substantiate his absence. Accordingly, it is concluded appellant did not reasonably explain his failure to obtain leave.

Appellant proved that he is ready, able and willing to return to work. Appellant’s physician cleared appellant to return to work, without restriction, as a Correctional Officer. Appellant testified he is ready, willing and able.

Because appellant did not provide a satisfactory explanation to DPA as to his failure to request and/or obtain leave from his employer, appellant should not be reinstated to his former position as Correctional Sergeant at CVSP, Blythe, California.

 

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that the appeal for reinstatement after automatic resignation effective March 17, 1999, is denied.

 

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1. See citation at page 7.

2. There is no finding being made that the cause of appellant’s conjunctivitis was work related.